Camargo's Case , 479 Mass. 492 ( 2018 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12368
IVES CAMARGO'S CASE.
Suffolk. January 10, 2018. - May 10, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Workers' Compensation Act, To whom act applies, Independent
contractor.
Appeal from a decision of the Industrial Accident Reviewing
Board.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Michael A. Fager for the claimant.
Paul S. Kelly (Bruce J. Barker also present) for Publishers
Circulation Fulfillment, Inc., & another.
Catherine K. Ruckelshaus, of New York, Audrey Richardson,
Janette Ekanem, Emily Spieler, & Ingrid Nava, for Brazilian
Women's Group & others, amici curiae, submitted a brief.
KAFKER, J. The claimant, Ives Camargo, seeks review of a
decision by the reviewing board of the Department of Industrial
Accidents (department) concerning her claim for workers'
compensation benefits pursuant to G. L. c. 152. The reviewing
2
board affirmed the findings of an administrative judge,
concluding that the clamant was an independent contractor and
therefore was not entitled to workers' compensation. The
reviewing board made this determination on the basis of the
definition of "employee" contained in the workers' compensation
statute, as articulated in the twelve-part test from MacTavish
v. O'Connor Lumber Co., 6 Mass. Workers' Comp. Rep. 174, 177
(1992), and Whitman's Case, 80 Mass. App. Ct. 348, 353 (2011),
rather than the definition of employee found in G. L. c. 149,
§ 148B, the independent contractor statute. The claimant
appealed, and we transferred the case to this court on our own
motion. The claimant argues that the reviewing board erred in
(1) failing to use the definition of "employee" under G. L.
c. 149, § 148B, to determine whether the claimant was an
employee eligible for workers' compensation under G. L. c. 152;
and (2) finding that the claimant was an independent contractor
rather than an employee.
We conclude that the independent contractor statute, G. L.
c. 149, § 148B, does not determine whether a claimant is an
employee for the purpose of workers' compensation benefits under
G. L. c. 152. The reviewing board correctly applied the
workers' compensation statute's definition of employee to
determine whether the claimant was an employee under G. L.
c. 152, and therefore the claimant was properly classified as an
3
independent contractor for the purposes of workers'
compensation.1
1. Background. a. Facts. The claimant began working as
a newspaper delivery agent for Publishers Circulation
Fulfillment, Inc. (PCF), in 2001. PCF provides home delivery
services for newspaper publishers and pays delivery agents to
deliver newspapers to subscribers. PCF does not publish its own
newspapers. Instead, it acts as a middleman to deliver
published newspapers. The claimant was hired by PCF and she
signed various contracts over the years that identified her as
an independent contractor. As part of her contract with PCF,
she was provided with newspaper delivery routes and a list of
customers. Pursuant to the contract, the claimant could make
her deliveries at any time and in any order she wished, provided
that the deliveries were completed by 6 A.M. on weekdays and 8
A.M. on weekends. To make the deliveries, the claimant used her
own vehicle, which she did for twelve years. The claimant was
paid for each newspaper delivered as well as a weekly stipend,
paid when she elected to redeliver newspapers to customers who
did not receive a scheduled delivery.
1 We acknowledge the amicus brief submitted by Brazilian
Women's Group, Centro Comunitario de Trabajadores, Immigrant
Worker Center Collaborative, Lynn Worker's Center, Massachusetts
Coalition for Occupational Safety and Health, Metrowest Worker
Center, National Employment Law Project, and Service Employees
International Union Local 32BJ.
4
In addition to setting a time by which newspaper delivery
had to be completed, PCF required the delivery of dry and
undamaged newspapers. Delivery agents could purchase bags to
wrap the newspapers from PCF, which the claimant did, but this
was not mandatory.
As part of the PCF contract, the claimant was permitted to
hire assistants or subcontract her deliveries, an option she
exercised. Additionally, given the nonexclusivity of the
contract between the claimant and PCF, the claimant could
deliver newspapers or other items for other businesses. She
also purchased and collected independent contractor work
insurance and filed her taxes as an independent contractor.
On September 26, 2010, the claimant was loading newspapers
from PCF into her vehicle using a hand carriage when she fell
off a ramp and hurt her right knee and right hand. She reported
her injury to PCF but did not seek medical treatment. Despite
the fall, the claimant finished her work for PCF that day. On
January 7, 2011, the claimant reported a second injury; she had
slipped on ice while delivering newspapers, injuring her right
leg. Following this second injury, the claimant was
hospitalized and eventually underwent two surgeries, one for her
right knee and the other for her right hand. The claimant was
fired in the summer of 2012.
5
The claimant filed an initial claim for workers'
compensation benefits in 2012 with the department. The insurer
objected. After a conference, the administrative judge issued
an order directing the insurer to pay the claimant temporary
total incapacity benefits. The insurer appealed to a hearing,
seeking a denial of all claims.2 In the decision issued after
the hearing, the administrative judge determined that the
claimant was an independent contractor and therefore was not
entitled to workers' compensation benefits. The reviewing board
affirmed, finding that the claimant was an independent
contractor.
b. Relevant statutes. General Laws c. 152 requires
employers to provide workers' compensation to employees who are
injured within the scope of their employment. The law applies
to "employees," defined as "every person in the service of
another under any contract of hire, express or implied, oral or
written," with certain exceptions not relevant to this opinion.
G. L. c. 152, § 1 (4). See Thorson v. Mandell, 402 Mass. 744,
746 (1988); McDermott's Case, 283 Mass. 74, 75 (1933). In
MacTavish, 6 Mass. Workers' Comp. Rep. at 177, the department
established a ten-factor test to determine whether an individual
is an "employee" under the definition provided by G. L. c. 152,
2 The insurer also sought penalties against the claimant for
fraudulent behavior, but that issue is not before us on appeal.
6
§ 1 (4), or an independent contractor and therefore outside the
scope of the statute. The MacTavish factors were then
supplemented in Whitman's Case, 80 Mass. App. Ct. at 353 n.3, to
become a twelve-factor test.3 The department has consistently
applied some formulation of the MacTavish-Whitman factors for
over one-quarter century to decide whether an individual is an
employee or independent contractor for workers' compensation
claims. See Whitman's Case, 80 Mass. App. Ct. at 353; Stone v.
All Seasons Painting & Decorating, 25 Mass. Workers' Comp. Rep.
227, 231-232 (2011); MacTavish, 6 Mass. Workers' Comp. Rep. at
177. These factors are congruent to tests used in other
jurisdictions to determine whether an individual is an employee
for the purpose of workers' compensation, all of which are
The relevant MacTavish-Whitman factors are "(a) the extent
3
of control, by the agreement, over the details of the work; (b)
whether . . . the one employed is engaged in a distinct
occupation or business; (c) the kind of occupation, with
reference to whether, in the locality, the work is usually done
under the direction of the employer or by a specialist without
supervision; (d) the skill required in the particular
occupation; (e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work; (f) the length of time for which the person is
employed; (g) the method of payment, whether by the time or by
the job; (h) whether . . . the work is a part of the regular
business of the employer; (i) whether . . . the parties believe
they are creating the relation of master and servant; (j)
whether the principal is . . . in business," MacTavish v.
O'Connor Lumber Co., 6 Mass. Workers' Comp. Rep. 174, 177
(1992), "[k] the tax treatment applied to payment . . .; and [l]
the presence of the right to terminate the relationship without
liability, as opposed to the worker's right to complete the
project for which he was hired . . . ," Whitman's Case, 80 Mass.
App. Ct. 348, 353 (2011).
7
largely derived from the Restatement (Second) of Agency § 220
(1958). See, e.g., Doughty v. Work Opportunities
Unlimited/Leddy Group, 33 A.3d 410, 419 (Me. 2011) (using
factors similar to Restatement [Second] of Agency in determining
who is employee for workers' compensation); Elms v. Renewal by
Andersen, 439 Md. 381, 393 (2014) (using factors similar to
MacTavish-Whitman factors to determine whether individual was
employee for purposes of workers' compensation).
In contrast, the independent contractor statute, G. L.
c. 149, § 148B, provides the following as a means to determine
employment status:
"(a) For the purpose of [G. L. c. 149] and [G. L.
c. 151 (the minimum wage act)], an individual performing
any service, except as authorized under this chapter, shall
be considered to be an employee under those chapters
unless: --
"(1) the individual is free from control and direction
in connection with the performance of the service, both
under his contract for the performance of service and in
fact; and
"(2) the service is performed outside the usual course
of the business of the employer; and,
"(3) the individual is customarily engaged in an
independently established trade, occupation, profession or
business of the same nature as that involved in the service
performed."
General Laws c. 149 provides specific benefits and
protections to employees, including how often an employee must
be paid, when an employee must be notified of wage deductions,
8
and how much time an employee must be given for break periods
during work. See G. L. c. 149, §§ 100, 148, 150A. As
originally drafted, the independent contractor statute was
limited to G. L. c. 149. In 2004, the statute was amended to
encompass G. L. c. 151, which provides for a minimum wage.
Neither of these statutes provides for workers' compensation
benefits. General Laws c. 149, § 148B, as amended by St. 2004,
c. 193, § 26, does, however, make limited reference to G. L.
c. 152. It states:
"(b) The failure to withhold . . . workers
compensation premiums with respect to an individual's wages
shall not be considered in making a determination under
this section.
"(c) An individual's exercise of the option to secure
workers' compensation insurance with a carrier as a sole
proprietor or partnership pursuant to [G. L. c. 152, § 1
(4)] shall not be considered in making a determination
under this section.
"(d) . . . Whoever fails to properly classify an
individual as an employee according to this section and in
so doing violates [G. L. c. 152] shall be punished as
provided in [G. L. c. 152, § 14,] and shall be subject to
all of the civil remedies, including debarment, provided in
[G. L. c. 149, § 27C]."
2. Discussion. The issue presented in this case is
whether the definition of "employee" included in G. L. c. 152,
§ 1, as historically applied by the department, or the
definition of "employee" set out in G. L. c. 149, § 148B,
applies to the determination of workers' compensation benefits.
When reviewing decisions made by the reviewing board, we are to
9
give "due weight to the experience, technical competence, and
specialized knowledge" of the agency. McDonough's Case, 448
Mass. 79, 81 (2006), quoting G. L. c. 30A, § 14 (7). In matters
of statutory interpretation, "deference is due when an agency
interprets a statute is it charged with administering."
Springfield v. Civil Serv. Comm'n, 469 Mass. 370, 380 (2014).
However, where the statute is not one that the agency
administers, no deference is due. See id. We exercise de novo
review of questions of statutory construction in such cases, and
"we must overturn agency decisions that are not consistent with
governing law." McDonough's Case, 448 Mass. at 81. We owe
deference to the department's interpretation of the definition
of employee under G. L. c. 152 and other aspects of this
statute. We do not, however, defer to its interpretation of
G. L. c. 149, § 148B.
a. Application of G. L. c. 149, § 148B. The two key
provisions in the independent contractor statute are G. L.
c. 149, §148B (a) and (d), which state:
"(a) For the purpose of [G. L. cc. 149 & 151], an
individual performing any service, except as authorized
under this chapter, shall be considered to be an employee
under those chapters unless . . . .
"(d) . . . Whoever fails to properly classify an
individual as an employee according to this section and in
so doing violates [G. L. c. 152] shall be punished as
provided in [G. L. c. 152, § 14,] and shall be subject to
all of the civil remedies, including debarment, provided in
[G. L. c. 149, § 27C]."
10
The claimant argues that the reference to G. L. c. 152 in
subsection (d) incorporates the three-part independent
contractor test set out in G. L. c. 149, § 148B, into G. L.
c. 152, and thus, the definition of "employee" in G. L. c. 149,
§ 148B (a), should be used in lieu of the definition of
"employee" found in G. L. c. 152, § 1, and the MacTavish-Whitman
factors. We disagree.
For questions of statutory interpretation, we must consider
"the intent of the Legislature ascertained from all the words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated." Depianti v. Jan-Pro Franchising Int'l, Inc.,
465 Mass. 607, 620 (2013), quoting Industrial Fin. Corp. v.
State Tax Comm'n, 367 Mass. 360, 364 (1975). Additionally, the
statute must "be construed 'so that effect is given to all its
provisions, so that no part will be inoperative or
superfluous.'" Bankers Life & Cas. Co. v. Commissioner of Ins.,
427 Mass. 136, 140 (1998), quoting 2A B. Singer, Sutherland
Statutory Construction § 46.06 (5th ed. 1992). Here, where two
statutes intersect, we must look at both statutes to determine
11
whether § 148B applies to the workers' compensation laws of
G. L. c. 152.
In interpreting the scope of § 148B, we need look no
further than the plain and unambiguous language provided by the
Legislature in subsection (a) of the statute. See Phillips v.
Equity Residential Mgt., LLC, 478 Mass. 251, 257 (2017). The
Legislature provided that § 148B applies "for the purposes of
[G. L. c. 149] and [G. L. c.] 151." G. L. c. 149, § 148B. In
so doing, the Legislature has expressed its intent to limit the
applicability of the independent contractor statute to G. L.
cc. 149 and 151. See Spaniol's Case, 466 Mass. 102, 108-109
(2013) (declining to combine laws where Legislature intended to
keep them separate). If the Legislature had wanted to
substitute the G. L. c. 149, § 148B, independent contractor
statute for the definition of "employee" included in G. L.
c. 152, § 1, it could have expressly done so in § 148B (a). The
Legislature also has used the standard language it usually
includes whenever it intends to displace or supersede related
provisions in all other statutes, "Notwithstanding any general
or special law to the contrary . . . ." See Mosey Cafe, Inc. v.
Licensing Bd. of Boston, 338 Mass. 199, 203-204 (1958) (implying
that "notwithstanding any general or special law heretofore"
language shows legislative intent to displace prior inconsistent
legislation); Beacon S. Station Assocs. v. Assessors of Boston,
12
85 Mass. App. Ct. 301, 306 (2014) (stating that "notwithstanding
any general or special law to the contrary" language is used to
displace inconsistent statutes).
Although the independent contractor statute does not apply
to G. L. c. 152 in its entirety or change the definition of an
employee for the purposes of workers' compensation claims,
G. L. c. 149, § 148B (d), contains a specific and isolated
cross-reference to G. L. c. 152, that requires consideration and
understanding. In its written decision, the reviewing board
addressed and clarified this cross-reference for workers'
compensation purposes:
"We do not agree that subsection (d) of § 148B can be
interpreted to include [G. L. c.] 152 in toto. The
subsection addresses expanded penalties for misclassifying
workers, not whether an individual is an employee or an
independent contractor for the purpose of workers'
compensation benefits . . . . The subsection's requirement
that a party that misclassifies a worker in violation of
§ 148B (d) 'and in so doing' violates [G. L. c.] 152
creates two criteria. The first is the violation of
§ 148B (d), the second is when that violation also violates
[G. L. c.] 152. This language does not supplant the
MacTavish-Whitman analysis, but merely notes that when the
facts of a given case demonstrate a misclassification of a
worker as an independent contractor under § 148B, the
penalties of [G. L. c. 152,] § 14 (3)[,] are applicable.
It does not apply to a determination whether an individual
is eligible for workers' compensation benefits." (Emphasis
in original.)
We agree.
This provision recognizes that a misclassification of an
employee under § 148B may also result in a misclassification of
13
an employee under G. L. c. 152, and "in so doing" it will
trigger the heightened penalties provided by both G. L. c. 152,
§ 14, and G. L. c. 149, § 27C. See L.Y. Nason, C.W. Koziol, &
R.A. Wall, Workers' Compensation § 8.1 (3d ed. 2003 & Supp.
2017) (adoption of 2004 amendment to G. L. c. 149, § 148B, has
no impact on determination of employment status under G. L.
c. 152, § 1, but does provide for punishment when there is
misclassification under both statutes); Advisory A.G., Doc. No.
2008/1 at 4 (2008) (misclassifying employee under G. L. c. 152
is separate and distinct act from misclassifying employee under
G. L. c. 149, § 148B). See also Massachusetts Delivery Ass'n v.
Coakley, 671 F.3d 33, 37 n.3 (1st. Cir. 2012) ("improper
classification under § 148B, of itself, does not appear to give
rise to a cause of action; instead, the statute seems to require
that an improper classification result in a violation of one of
the referenced chapters [including G. L. c. 152]").
The plain language and legislative history indicate that
the Legislature intended that the definitions of an employee and
an independent contractor in § 148B apply generally only to
G. L. cc. 149 and 151. The cross-reference to G. L. c. 152 was
specific and limited: if, in violating the three-prong test for
determining an independent contractor in § 148B, the
misclassification also violates G. L. c. 152, the penalties
applicable to misclassification under G. L. c. 152 as well as
14
G. L. c. 149 apply. There is no intent to broaden § 148B beyond
this.
Our laws have imposed differing, and not uniform,
definitions of employees and independent contractors.
Currently, there are at least four distinct methods used to
determine employment status in the Commonwealth. General Laws
c. 152, § 1, provides a definition of an employee for workers'
compensation claims, and the department uses the MacTavish-
Whitman factors to determine employment status. General Laws
c. 149, § 148B, provides a three-prong test to define employment
status under G. L. cc. 149 and 151. A third definition is
provided in G. L. c. 151A, § 2, for the purpose of unemployment
insurance, which uses a three-prong test that is similar to, but
distinct from, the test in G. L. c. 149, § 148B. In particular,
the second prong expands the definition of independent
contractor from work performed outside "the usual course of
business" to include work performed "outside of all the places
of business." See Athol Daily News v. Board of Review of the
Div. of Employment & Training, 439 Mass. 171, 176, 179 (2003)
(board erred in awarding unemployment insurance to newspaper
carriers by failing to consider importance of their making
deliveries outside of business premises). Finally, a fourth
definition of employee is provided in G. L. c. 62B, § 1, for the
purposes of withholding taxes on wages, and the department of
15
revenue applies the Internal Revenue Code's twenty-factor
analysis to determine employment status. See Technical
Information Release 05-11 (Sept. 13, 2005), Official MassTax
Guide, at PSW-206 (Thomson Reuters 2018) (amendments to G. L.
c. 149, § 148B, do not change statutory definition of "employee"
found in G. L. c. 62B). It is thus not uncommon to have
competing definitions of the same word where the purposes of the
respective statutes are different. If the Legislature intends
to impose a uniform standard definition of employee or
independent contractor across all employment related statutes in
the Commonwealth, it may of course do so. However, the isolated
cross-references in G. L. c. 149, § 148B, alone do not so
provide.
This lack of uniformity also reflects differences in the
particular laws. The laws governing workers' compensation,
unemployment insurance, minimum wages, and tax withholding serve
different, albeit related, purposes. Each involves a complex
allocation of costs and benefits for individuals, companies, and
State government itself. Other States that employ multiple
tests for determining employee or independent contractor status
depending on the context have emphasized these differences.
See, e.g., Terry v. Sapphire Gentlemen's Club, 336 P.3d 951,
957-958 (Nev. 2014), and cases cited (describing why Nevada and
other States have concluded that goals of workers' compensation
16
laws are not in pari materia with wage laws, with each being
enacted for precise and distinct reasons resulting in different
tests to determine employment status). We need not, however,
belabor the similarities or differences in the statutes, as it
is up to the Legislature to decide how much uniformity to
impose, and it has done so with care and particularity in these
statutory schemes.
Adopting this understanding of G. L. c. 152 and G. L.
c. 149, § 148B, we conclude that the independent contractor
statute, G. L. c. 149, § 148B, does not displace the definition
of "employee" in G. L. c. 152, § 1, and therefore G. L. c. 149,
§ 148B, is not used to determine employment status for workers'
compensation claims under G. L. c. 152.4
b. Claimant's employment status. As stated above, the
definition of "employee" provided in G. L. c. 152, § 1, governs
the claimant's employment status in her claim for workers'
compensation benefits. The MacTavish-Whitman factors provide
4 We also recognize that G. L. c. 152, and the case law
interpreting it, place the burden on the individual seeking
workers' compensation to prove all elements of a claim under
G. L. c. 152, including employee status. See Ginley's Case, 244
Mass. 346, 347 (1923); Connolly's Case, 41 Mass. App. Ct. 35, 37
(1996). In comparison, G. L. c. 149, § 148B, places the burden
of proof as to independent contractor status on the defendant,
in this case, the putative employer. Somers v. Converged
Access, Inc., 454 Mass. 582, 589 (2009). We discern no intent
on the Legislature's part in amending § 148B to shift the burden
of proof in workers' compensation cases; indeed, this would
reflect another significant change in the workers' compensation
law.
17
the appropriate test to determine employment status for claims
filed under G. L. c. 152. See Whitman's Case, 80 Mass. App. Ct.
at 353 n.3; MacTavish, 6 Mass. Workers' Comp. Rep. at 177. "The
question of employment status within the meaning of G. L.
c. 152, § 1 (4), is essentially a question of fact for the
board, not to be set aside if it is justified by the evidence,
unless, of course, it is tainted by some error of law"
(quotations and citations omitted). Whitman's Case, supra at
353.
The claimant fails to allege an error of law with respect
to the application of the MacTavish-Whitman factors in this
case. Moreover, the evidence supports the finding that the
claimant was an independent contractor. In working for PCF, the
claimant was allowed to expand her business to deliver
newspapers and other items for other companies; supplied all
necessary instruments to complete her job at PCF, including
using her own vehicle to make deliveries; hired substitutes to
complete the job; purchased her own independent contractor work
insurance; and filed taxes as an independent contractor. In
applying the MacTavish-Whitman test to these facts, the
administrative judge properly concluded, and the reviewing board
properly affirmed, that the claimant was an independent
contractor under G. L. c. 152, § 1.
18
3. Conclusion. For the reasons discussed, we hold that
the independent contractor statute, G. L. c. 149, § 148B, is not
used to determine employment status for workers' compensation
claims under G. L. c. 152. We also affirm the determination of
the reviewing board that the claimant was an independent
contractor.
So ordered.
GANTS, C.J. (concurring, with whom Lowy and Budd, JJ.,
join). I agree with the court that, in enacting the independent
contractor statute, G. L. c. 149, § 148B, the Legislature did
not intend to displace the definition of "employee" contained in
the workers' compensation statute, G. L. c. 152, § 1. I write
separately only to express my concern about the practical
consequences of this statutory scheme, which, by setting forth a
patchwork of different standards for determining whether a
worker is an employee or an independent contractor, may
exacerbate the already complex problem of worker
misclassification.
Worker misclassification is a serious problem, both in our
Commonwealth and across the nation. See Somers v. Converged
Access, Inc., 454 Mass. 582, 592-593 (2009); Advisory A.G., Doc.
No. 2008/1 (2008). Where an employee is misclassified as an
independent contractor, he or she is deprived of many important
benefits and protections, such as minimum wages and overtime
pay, unemployment insurance, and workers' compensation. See
G. L. c. 151, § 1 (minimum wage); G. L. c. 151, § 1A (overtime
pay); G. L. c. 151A (unemployment insurance); G. L. c. 152
(workers' compensation). Misclassification also "imposes
significant financial burdens on the Federal government and the
Commonwealth in lost tax and insurance revenues," while exposing
2
employers who properly classify their workers to unfair
competition from those who do not. Somers, supra at 593.
Part of the challenge in preventing misclassification is
that there is no uniform definition of an "employee." Instead,
the law sets forth several different standards for determining
who is an employee and who is an independent contractor,
depending on the context. In 2004, the Massachusetts
Legislature took a significant step toward harmonizing these
standards, amending the independent contractor statute, G. L.
c. 149, § 148B, so that its presumption in favor of employee
status applied not only to the wage and hour laws contained in
G. L. c. 149 but also to the minimum wage and overtime laws in
G. L. c. 151. See St. 2004, c. 193, § 26. However, the law
governing employment relations in this State remains far from
uniform.
As the court notes, Massachusetts law articulates at least
four different standards for determining employment status.
Ante at . For purposes of determining whether a worker is
entitled to wage and hour protections, minimum wage, or
overtime, we apply the three-prong independent contractor test
in G. L. c. 149, § 148B (a). But to determine whether a worker
is entitled to unemployment insurance, we must apply a different
three-prong test, set forth in G. L. c. 151A, § 2. Meanwhile,
whether a worker is entitled to workers' compensation depends on
3
an analysis of twelve separate factors, see MacTavish v.
O'Connor Lumber Co., 6 Mass. Workers' Comp. Rep. 174, 177
(1992), and Whitman's Case, 80 Mass. App. Ct. 348, 353 n.3
(2011), and whether a worker is an employee for purposes of
income tax withholding requires an examination of twenty
factors. See G. L. c. 62B, § 1 (incorporating Internal Revenue
Code's definition of "employee"); Rev. Rul. 87-41, 1987-1 C.B.
296, 298-299 (listing twenty factors). In addition, who bears
the burden of proof as to employment status -- the employer or
the worker -- also varies across different contexts. Under wage
and hour, minimum wage, and overtime laws, an individual who
performs services is presumed to be an employee unless the
employer can prove that he or she is in fact an independent
contractor. See G. L. c. 149, § 148B (a); Somers, 454 Mass. at
589. The same holds true for purposes of unemployment
insurance. See G. L. c. 151A, § 2; Athol Daily News v. Board
of Review of the Div. of Employment & Training, 439 Mass. 171,
175 (2003). But that presumption disappears in the context of
workers' compensation, where the claimant bears the burden to
prove his or her entitlement. See Connolly's Case, 41 Mass.
App. Ct. 35, 37 (1996).
The practical result of this patchwork statutory scheme is
confusion and uncertainty. With so many different standards, it
is difficult for employers to classify their workers properly,
4
even where they intend to comply with the law. See Deknatel &
Hoff-Downing, ABC on the Books and in the Courts: An Analysis
of Recent Independent Contractor and Misclassification Statutes,
18 U. Pa. J.L. & Soc. Change 53, 65 (2015). Enforcement also
becomes more challenging, as State agencies must expend greater
resources to interpret and implement nonuniform laws. See id.
See also Buscaglia, Crafting a Legislative Solution to the
Economic Harm of Employee Misclassification, 9 U.C. Davis Bus.
L.J. 111, 129-130 (2008).
Most importantly, workers must struggle to understand and
assert their rights. Although Massachusetts laws require
employers to post notices in workplaces explaining the various
protections and benefits available to employees, see, e.g.,
G. L. c. 151, § 16 (notice of minimum wage); G. L. c. 151A,
§ 62A (g) (notice of unemployment insurance coverage), these
notices offer little guidance to workers who do not know, as a
threshold matter, whether they are employees or not.
Ascertaining one's own employment status can be especially
difficult given that, under the current law, the same worker can
be an employee for one purpose but an independent contractor for
another. Consider, for example, a worker who is deemed an
employee under the independent contractor statute, G. L. c. 149,
§ 148B (a), but not under the workers' compensation statute,
G. L. c. 152, § 1. If her employer complies with the law, then
5
that worker would receive minimum wages, overtime pay, and other
protections associated with employee status. She may assume on
that basis that she is also eligible for workers' compensation,
and choose not to purchase comparable insurance. But when that
same worker is injured in the workplace, and seeks workers'
compensation, she would be denied those benefits, realizing only
then, when it is too late, that she was never entitled to them
in the first instance. Or suppose her employer does not comply
with the law, and does not provide her with minimum wage,
overtime pay, and the other benefits to which she is entitled.
If her employer then also tells her, correctly, that she is not
entitled to workers' compensation because she is an independent
contractor, how do we realistically expect her to understand
that, for the purposes of wage and hour, minimum wage, and
overtime laws, she is still an employee, and is therefore being
denied her benefits under those laws?
I do not doubt that the different standards for determining
employment status are tailored, as the court points out, to meet
the different purposes of the laws governing employment
relations in our State. See ante at . I suggest only that
it is time to confront the problems that arise from this complex
statutory scheme, especially to workers. Some States have taken
steps to harmonize their laws; at least one State, Maine, has
adopted a single, uniform standard for determining employment
6
status under unemployment insurance, workers' compensation, and
other employment laws. See 2012 Me. Legis. c. 643
(standardizing definition of "independent contractor" across
laws); Me. Rev. Stat. Ann. tit. 26, § 591 (2007 & Supp. 2017)
(employment practices); Me. Rev. Stat. Ann. tit. 26, § 1043
(2007 & Supp. 2017) (unemployment insurance); Me. Rev. Stat.
Ann. tit. 39-A, § 102 (2001 & Supp. 2017) (workers'
compensation). See also Or. Rev. Stat. § 670.700 (mandating
cooperation between State agencies to "establish consistency in
agency determinations relating to the classification of
workers"). Other States have introduced measures designed to
provide more guidance to workers as to their employment status.
See, e.g., 820 Ill. Comp. Stat. 185/15 (2008) (requiring
construction contractors to post information about worker
classification); N.H. Rev. Stat. Ann. § 275:49(V) (2010 & Supp.
2017) (requiring employers to post information about criteria
for classifying worker as employee or independent contractor).
Whether such reforms would be appropriate in Massachusetts is,
of course, a question for the Legislature and, as this case
illustrates, a pressing one -- which I invite the Legislature to
address.